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Charter - Section 8 - Test. R. v. Pike
In R. v. Pike (Ont CA, 2024) the Ontario Court of Appeal considers a Crown appeal to a Charter s.8 search and seizure challenge to the s.99(1) ['Examination of goods'] Customs Act provision.
Here the court reviews the Charter s.8 (search and seizure) "unreasonable search" test:(a) The Legal Framework for Unreasonable Search Claims
[29] Section 8 of the Charter protects everyone’s “right to be secure against unreasonable search or seizure.” Its main purpose is to protect privacy, meaning the reasonable right that each of us enjoy to be left alone by the state. Privacy protections preserve our liberty and prevent government from prying into our lives. We have privacy interests not merely in our homes and other places where we live and work, but also in our bodies and in personal information about ourselves: R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at paras. 12‑16, 20-24.
[30] A two-step test governs s. 8 claims. At step one, claimants must prove that the state engaged in a search or seizure. To prove a search, claimants must show that the state invaded their reasonable expectation of privacy. Courts determine this expectation’s existence by considering the subject matter the state is targeting, the claimants’ interest in that subject matter, their subjective expectation of privacy, and the objective reasonableness of that subjective expectation: R. v. Bykovets, 2024 SCC 6, 489 D.L.R. (4th) 1, at paras. 29-31. If claimants show the state searched them without obtaining a judicial warrant authorizing the search, then the search is presumptively unreasonable. At step two, the state must rebut this presumption and prove on a balance of probabilities that the search was reasonable by showing that a reasonable law authorized it and that the state carried it out reasonably. If the state does not meet this burden, then the search limits s. 8 rights and the state must justify that limit under section 1 of the Charter. If the state fails to do so, then the search is unconstitutional: Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46, [2015] 3 S.C.R. 250, at paras. 48, 56, 79.
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(i) The Law Authorizes Low Threshold Digital Device Searches
The Law Authorizes the Searches
[34] The state cannot search people unless statutes or judge-made rules authorize it to do so, and it complies with those laws’ requirements and restrictions. This rule limits state power to protect individual freedom and the rule of law: R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, at para. 12; R. v. Lee, 2017 ONCA 654, 351 C.C.C. (3d) 187, at para. 110, per Pardu J.A. (concurring).
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[43] Border officers must use the law’s search power in good faith and for a valid border law enforcement purpose. The caselaw recognizes this implied requirement, which the law shares with other search powers: R. v. Singh, 2014 ONSC 5658, 317 C.C.C. (3d) 446, at paras. 49-51; Comité paritaire de l’industrie de la chemise v. Potash, 1994 CanLII 92 (SCC), [1994] 2 S.C.R. 406, at p. 425. It is a particular application of the bedrock rule of law principle from Roncarelli v. Duplessis that legislative grants of power to public officials “necessarily impl[y] good faith in discharging public duty” consistent with the “perspective within which a statute is intended to operate”: 1959 CanLII 50 (SCC), [1959] S.C.R. 121, at p. 140, per Rand J. Here, that perspective is the Customs Act’s purpose of regulating people and goods’ cross-border movements: Martineau, at para. 25.
[44] This good faith purpose requirement imposes modest but real limits. As with other search powers, it imposes a legitimate target rule that requires officers to look for evidence of border law violations: R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241, at paras. 42-43 (“Jones (2011)”); R. v. Appleton, 2011 CarswellOnt 11191 (S.C.), at para. 12. This bars officers from indiscriminately scouring the devices and examining programs or files for no legitimate border-related reason: Vu, at para. 61. Border officers also cannot make search decisions motivated or influenced by racial profiling: R. v. Dudhi, 2019 ONCA 665, 147 O.R. (3d) 546, at para. 64; R. v. Smith (2004), 2004 CanLII 46666 (ON SC), 26 C.R. (6th) 375 (Ont. S.C.), at paras. 29-30, 34. Nor can they use the law as a “mere ruse or pretext” to investigate non-Customs Act crimes: R. v. Mayor, 2019 ONCA 578, 378 C.C.C. (3d) 453, at paras. 7-9; Appleton, at para. 12.[4]
[45] That is as far as the good faith purpose requirement goes. It cannot be stretched beyond its modest rule-of-law-preserving role of ensuring that border officers act in good faith and consistent with the Customs Act’s purpose to impose a proportionality rule or other prohibitions on more intrusive searches. To the contrary, as the trial judge found, the good faith purpose requirement permits “wide-ranging inspection[s]” of digital files if necessary (Jones (2011), at para. 43) because the information officers seek can sometimes “be[] found almost anywhere in the [device]” (Vu, at para. 60). As the trial judge also found, Officer Sodhi’s searches of Mr. Scott’s tablet demonstrate this. He testified that he examined the Desktop, Documents, Downloads, and Pictures folders, which are not limited to recent communications, but contain a broad trove of highly sensitive personal information, because he expected travellers would store files, including child pornography, there.
[46] Parliament could have, but did not, impose more limits. We know that because it did so elsewhere in the Act by adding a customs controlled area search power that, unlike s. 99(1)(a), only authorizes non-intrusive suspicion-less goods searches: An Act to amend the Customs Act and to make related amendments to other Acts, S.C. 2001, c. 25, s. 60; Customs Act, s. 99.3(1). Because we are judges and not legislators, we cannot rewrite the Act by importing that limit into s. 99(1)(a): TELUS Communications Inc. v. Wellman, 2019 SCC 19, [2019] 2 S.C.R. 144, at paras. 79-80.
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The Reasonableness Test
[49] Laws authorizing privacy intrusions are reasonable if they strike a proper balance between people’s privacy interests and the state’s interests. Courts assess search laws' reasonableness by considering their: (1) intrusiveness, (2) reliability, (3) oversight mechanisms, (4) purpose, and (5) criminal or regulatory nature: Goodwin, at paras. 55-57, 67-68.
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